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Detention Litigation

IDP provides expert advice and support on detention-related litigation to ensure that all immigrants receive due process in matters of detention. IDP’s ongoing work includes support for habeas corpus petitions and other detention-related federal litigation, bond litigation before immigration courts, and related parole negotiations with administrative agencies. IDP also convenes a working group of habeas practitioners in New York and New Jersey.

Specifically, IDP has provided briefing and litigation support on the following issues: prolonged mandatory detention based on previous criminal convictions or classification as an “arriving alien”, detention pending a final order of removal where actual removal is not reasonably foreseeable, detention of individuals with serious medical needs, procedures at administrative custody hearings or reviews that are unconstitutional or unauthorized by statute, detention of immigrants whose cases are administratively closed, and mandatory detention initiated at times other than when released from criminal incarceration.

If you would like to request assistance or additional information, email us at [email protected]

Resources

Template motion for custody redetermination in light of Covid-19 pandemic:

Template motions and supporting exhibits that individuals detained pursuant to INA § 236(a) can use to seek a custody redetermination hearing before an Immigration Judge, arguing that the spread of the Covid-19 pandemic constitutes a material changed circumstance requiring the Immigration Judge to reassess a person’s detention.

Freedom Together: A guide on supporting a loved one in their immigration bond hearing (published in collaboration with The Bronx Defenders and the Center for Urban Pedagogy) Disponible en español aquí.

Practice Advisory: Challenging Evidence of Gang-Related Activity at Immigration Court Hearings (August 3, 2017)

Key Supreme Court Detention Cases Supported by IDP as Amicus Curiae

Jennings v. Rodriguez, 136 S. Ct. 2489, 195 L. Ed. 2d 821 (2016)

This case, currently pending before the Supreme Court, challenges the legality of several of the government’s immigration detention practices. Such practices include prolonged mandatory detention of asylum seekers, certain lawful permanent residents denied admission upon their return from a trip abroad, and noncitizens charged as removable due to certain criminal convictions. It asks that the government grant periodic bond hearings to noncitizens in mandatory detention for longer than six months, at which hearings the government bear the burden of justifying continued detention by clear and convincing evidence and the immigration court consider the overall length of detention and alternatives to incarceration that could mitigate flight risk.

IDP and allies filed two amicus briefs in support of the petitioners, describing the harmful effects of prolonged detention on detained noncitizens, their families and communities, and the immigration system as a whole.

Key U.S. Court of Appeals Detention Cases Supported by IDP as Amicus Curiae

First Circuit

Castaneda v. Souza et al. & Gordon et al. v. Holder et al., 810 F.3d 15 (1st Cir. 2015) (en banc)

In these companion cases, the First Circuit held that for an immigrant to be held in civil immigration detention on the basis of a criminal conviction,  the immigration agency must have taken that person into custody at the time of release from criminal custody. Otherwise, the immigrant is entitled to a bond hearing before an Immigration Judge. IDP and allies filed amicus briefs in support of these petitioners, discussing the legislative history of the mandatory detention laws and presenting the stories of individual immigrants impacted by the government’s detention policies.

Second Circuit

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015)

Mr. Lora, a longtime lawful permanent resident, challenged the government’s authority to detain him without a bond hearing. He challenged the prolonged length of his detention, and also that he was detained due to a criminal conviction that was old and for which he received no sentence of incarceration. IDP and allies filed an amicus brief in support of Mr. Lora presenting the stories of other immigrants impacted by the government’s detention policies. The Second Circuit ruled in Mr. Lora’s favor by establishing a bright-line rule that any immigrant detained on the basis of a criminal conviction must be given a bond hearing within six months of the start of detention. The Court ruled that at the bond hearing the government bears the burden of proving the individual presents a risk of flight or danger to the community. Additionally, the Court arguably rejected Mr. Lora’s arguments based on “released” and “when released” theories.

Third Circuit

Sylvain v. Atty Gen, 714 F.3d 150 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended. IDP and allies filed an amicus brief in support of the immigrant’s petition for rehearing en banc.

Desrosiers v. Hendricks, 532 Fed.Appx. 283 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Fourth Circuit

Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Ninth Circuit

Khoury et al. v. Asher et al., No. 14-35482 (pending)

In this case, immigrants are challenging the applicability of the mandatory detention statute 1) where there is no regard for the length of time that has passed since criminal custody ended, 2) where there was never any criminal sentence to incarceration, and 3) where detention has become unconstitutionally prolonged. IDP and allies filed an amicus brief in support of these petitioners presenting the stories of individual immigrants impacted by the government’s detention policies.

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